Lawyers for President Trump want the president to be allowed to review materials the FBI seized last Monday in a raid on Michael Cohen's office, home, and hotel room and be able to decide what is and is not covered by attorney-client privilege before criminal investigators get to see them.
Trump’s request, in the form of a letter from other lawyers representing him, could further complicate a hearing set for Monday afternoon. During that session, lawyers for Cohen are expected to tell the judge overseeing the case how many legal clients he has and how many seized documents he thinks might be covered by attorney-client privilege.
Cohen is set to attend the hearing. Also expected to be on hand is adult-film star Stormy Daniels, whom Cohen secretly paid $130,000 in 2016 to keep quiet the details of an alleged sexual liaison she had with Trump.
Prosecutors indicated in court filings Friday that Cohen has been under criminal investigation for months by the U.S. attorney in Manhattan and that a grand jury has been hearing evidence in the case.
Cohen, through his lawyers, has argued that the government’s policies to protect information covered by the attorney-client privilege are not enough, and that his own lawyers should be allowed to review the seized material before investigators do.
In a letter to U.S. District Judge Kimba Wood on Sunday night, other lawyers working on Trump’s behalf argue that the president should have a chance to review the material ahead of investigators.
The eight-page letter written by Trump’s lawyer, Joanna Hendon, accuses the Justice Department of acting in “an aggressive, intrusive, and unorthodox manner” in an attempt to “eliminate the president’s right to a full assertion of every privilege argument available to him.”
President Trump's legal team is claiming the usual procedure used to protect attorney-client privilege is inadequate.
That procedure involves having a “taint team” of prosecutors outside the investigation review all the material and separate what is covered by the privilege. A lawyer’s communications with a client are not covered by the privilege if those discussions do not involve legal advice, or were used to further a crime or fraud.
Under the procedure, the taint team would turn over to the case investigators all the material that is relevant and not covered by attorney-client privilege.
“The president objects to the government’s proposal to use a ‘taint team’ of prosecutors from the very office that is investigating this matter to conduct the initial privilege review of documents seized from the President’s personal attorney, Michael Cohen,’’ Hendon’s letter said.
She added that “the president respectfully requests” that the judge issue an order barring the taint team from conducting an initial review of the seized material and require the government to turn over a copy of that material to Cohen’s lawyers.
Then, the president wants the court to direct Cohen “to identify to the president all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel,” according to the letter. Any disputes about what material was or wasn’t covered by the attorney-client privilege would then be decided by a judge, under the president’s proposal.